O.C.G.A. § 16-12-140 (2019)

Annotations

Cross references. Voluntary and informed consent to abortion, § 31-9A-3. Disciplining of physicians by Georgia

OFFENSES/HEALTH & MORALS

Composite Medical Board for performing, procuring, or otherwise obtaining criminal abortion, § 43-34-8. Editor’s notes. Ga. L. 2012, p. 575, § 1/HB 954, not codified by the General Assembly, provides that: “The General Assembly makes the following findings: “(1) At least by 20 weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain; “(2) There is substantial evidence that, by 20 weeks after fertilization, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain; “(3) Anesthesia is routinely administered to unborn children who have developed 20 weeks or more past fertilization who undergo prenatal surgery; “(4) Even before 20 weeks after fertilization, unborn children have been observed to exhibit hormonal stress responses to painful stimuli. Such responses were reduced when pain medication was administered directly to such unborn children; “(4.1) Probable gestational age is an estimate made to assume the closest time to which the fertilization of a human ovum occurred and does not purport to be an exact diagnosis of when such fertilization occurred; and

“(5) It is the purpose of the State of Georgia to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.” Administrative rules and regulations. Limitations on Physician Assistant Practice, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Composite Medical Board, Physician’s Assistants, Rule 360-5-.05. Regulation of Protocol Use by Advanced Practice Registered Nurses as Authorized by O.C.G.A. Section 43-34-26.3, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia Board of Nursing, Regulation of Advanced Practice Registered Nurses, Rule 410-11-.14. Law reviews. For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey article discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For article, “Crimes and Offenses,” see 27 Georgia St. U.L. Rev. 209 (2011). For article on the 2012 amendment of this Code section, see 29 Georgia St. U.L. Rev. 253 (2012).

JUDICIAL DECISIONS Constitutionality. - Distinction between the sentences required by the Georgia feticide statute (life sentence) and O.C.G.A. § 16-12-140 is rationally related to legitimate governmental purposes. Smith v. Newsome, 815 F.2d 1386, 1987 U.S. App. LEXIS 6141 (11th Cir. 1987). Pregnant woman does not have absolute constitutional right to abortion upon demand. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201, 1973 U.S. LEXIS 112 (1973). Viable unborn children have right to protection. - Viable unborn child has right under United States Constitution to protection of state through statutes prohibiting arbitrary termination of life of an unborn fetus. Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86,

274 S.E.2d 457, 1981 Ga. LEXIS 613 (1981). Conduct of others controlled. - O.C.G.A. § 16-12-140 is specifically directed to prevent the conduct of persons other than the pregnant woman. Hillman v. State, 232 Ga. App. 741, 503 S.E.2d 610, 1998 Ga. App. LEXIS 820 (1998). O.C.G.A. § 16-12-140 is written in the third person, clearly indicating that at least two actions must be involved; therefore, a woman cannot be prosecuted under that statute for allegedly performing a criminal abortion on herself. Hillman v. State, 232 Ga. App. 741, 503 S.E.2d 610, 1998 Ga. App. LEXIS 820 (1998). LIFE Act upheld as constitutional. - Trial court erred relying on overruled

U.S. Supreme Court precedent to conclude that portions of the Georgia LIFE Act (Georgia Living Infants Fairness and Equality Act (LIFE), 2019 Ga. Laws 711 (2019 Ga. HB 481)) violated the U.S. Constitution and were void ab initio as Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142 S. Ct. 2228, 213 L. Ed. 2d 545, 2022 U.S. LEXIS 3057 (2022), was now controlling precedent that the U.S. Constitution did not confer a right to abortion, and the LIFE Act complied with Dobbs. State of Ga. v. SisterSong Women of Color Reproductive Justice Collective, 317 Ga. 528, 894 S.E.2d 1, 2023 Ga. LEXIS 234 (2023).

Application of Roe-era precedent. - The Georgia Supreme Court is not at liberty to apply Roe-era precedent in determining whether the LIFE Act (Georgia Living Infants Fairness and Equality Act (LIFE), 2019 Ga. Laws 711 (2019 Ga. HB 481)) was void ab initio. State of Ga. v. SisterSong Women of Color Reproductive Justice Collective, 317 Ga. 528, 894 S.E.2d 1, 2023 Ga. LEXIS 234 (2023). Effect of amendment. - For a discussion of the amendment by Ga. L. 2012, p. 575, § 2/HB 954, see State of Ga. v. SisterSong Women of Color Reproductive Justice Collective, 317 Ga. 528, 894 S.E.2d 1, 2023 Ga. LEXIS 234 (2023).

OPINIONS OF THE ATTORNEY GENERAL Rights under abortion statutes extend to female inmates in state prisons. - Beyond requirements provided by abortion statute enacted in compliance with holding of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), Board of Offender Rehabilitation may not regulate right of female inmates to have

abortions; the board must comply with these statutory requirements in allowing and procuring abortions for female inmates; a failure to permit such abortions under prescribed conditions would lead to an infringement of the female inmates’ civil rights as guaranteed under the United States Constitution. 1977 Op. Att’y Gen. No. 77-36.

RESEARCH REFERENCES Am. Jur. 2d. 1 Am. Jur. 2d, Abortion and Birth Control, § 116 et seq. Am. Jur. Pleading and Practice Forms. 1 Am. Jur. Pleading and Practice Forms, Abortion, § 2. C.J.S. 1 C.J.S., Abortion and Birth Control; Family Planning, § 1 et seq. ALR. Criminal responsibility of one other than subject or actual perpetrator of abortion, 4 A.L.R. 351. Admissibility, in prosecution based on abortion, of evidence of commission of similar crimes by accused, 15 A.L.R.2d 1080.

Woman upon whom abortion is committed or attempted as accomplice for purposes of rule requiring corroboration of accomplice testimony, 34 A.L.R.3d 858. Right of action for injury to or death of woman who consented to illegal abortion, 36 A.L.R.3d 630. Homicide based on killing of unborn child, 40 A.L.R.3d 444; 64 A.L.R.5th 671. Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413. Women’s reproductive rights concerning abortion, and governmental regulation thereof - Supreme Court cases, 20 A.L.R. Fed. 2d 1.

OFFENSES/HEALTH & MORALS